927 F.

2d 170

UNITED STATES of America, Plaintiff-Appellee,

v.
Allen Ray SHARP, Defendant-Appellant.
UNITED STATES of America, Plaintiff-Appellant,
v.
Danny Howard FOUT, Defendant-Appellant.
Nos. 90-5491, 90-5492.

United States Court of Appeals,

Fourth Circuit.
Argued Dec. 7, 1990.
Decided March 4, 1991.

John Joseph Cowan, Charleston, W.Va., argued (Jerome J. McFadden,

Gibson, McFadden & Ash, Princeton, W.Va., on brief), for defendantsappellants.
Dwane Lamont Tinsley, Asst. U.S. Atty., argued (Michael W. Carey, U.S.
Atty., Charleston, W.Va., on brief), for plaintiff-appellee.
Before ERVIN, Chief Judge, NIEMEYER, Circuit Judge, and MERHIGE,
Senior United States District Judge for the Eastern District of Virginia,
sitting by designation.
ERVIN, Chief Judge:

Danny Howard Fout and Allen Ray Sharp were convicted of causing property
damage by use of explosives and conspiracy in connection with the bombing of
a coal mine. Both appealed their sentences, contending that they were denied
reductions or departures to which they were entitled. In addition, each appealed
from an order of restitution entered by the court, on the ground that the order
was entered in violation of 18 U.S.C. Sec. 3663. We affirm the sentences of
both defendants except that portion relating to the order of restitution. We
reverse the restitution and vacate the order of the district court, so that the
district court may reconsider that issue in light of this opinion.

I.
2

This case began with a dispute between coal miners and the mine where they
used to work. Nine former miners conspired to bomb the mine. They had
previously worked at the mine as union members, but had gone on strike in
October 1984. In May 1989, the mine was leased to Mountain Minerals after
having been idle for 5 years. Mountain Minerals hired non-union miners to
work there. The union members' strike continued.

On June 21, 1989, a homemade pipe-bomb was set off at the entrance to the
mine site. On July 12, 1989, a fire was set which destroyed the Milburn
Colliery tipple and processing plant. On September 22, 1989, a second bomb
was placed under the mine's exhaust ventilation fan near an entrance to the
mine; the bomb exploded, destroying the fan and damaging the mine. In
addition, another bomb device was placed on a power pole near the power
transformers of the mine; it did not detonate. No persons were injured as a
result of the above occurrences.

The Bureau of Alcohol, Tobacco and Firearms ("ATF") began an investigation

which led to Danny Fout. Fout's house was searched pursuant to a warrant. The
agents found: an illegal 12 gauge single barrel shotgun and a 14.223 caliber
rifle which had been converted to a fully automatic weapon; marijuana plants;
and material used to make "jack-rocks" for mine-related strike activities. Fout
was given Miranda warnings and was taken to the ATF office. Fout was not
represented by counsel at this time. He met with the United States Attorney and
an Assistant United States Attorney to discuss a possible plea agreement, still
unrepresented by counsel. Fout was told that if he cooperated with the
government, including wearing a body wire to implicate others in the
conspiracy, the government would help him with the guidelines.

There is disputed testimony over exactly what Fout was promised. He says that
the United States attorneys and agents told him that (1) they would help him to
lessen the guidelines; (2) they would help him in every way possible if he
cooperated; and (3) that he would be better off than any of the group. The
government agents testified that they never made a specific promise that the
government would make a motion for substantial assistance.

Fout signed a standard plea agreement form.1 He then wore a body wire on
three separate occasions to help the government obtain evidence against his coconspirators. At about the same time, an attorney was appointed for Fout. The
attorney was informed by the government of its intent to file a motion for

substantial assistance for Fout.

7

On the morning of the sentencing hearing, the government told Fout's counsel
that it would not file a motion for substantial assistance. Apparently the
government was displeased with Fout because of his failure to tell them that he
had placed a bomb in the tipple which was the subject of an arson case. Fout
was testifying in that case against Larry Massey, who was accused of setting
the tipple on fire. The government was concerned about last minute surprises
concerning Fout's testimony and repeatedly asked him if he had told them
everything about his involvement. He said that he had. However, the
government later learned from another source that Fout had placed a bomb in
the same tipple. Confronted with this evidence shortly before trial, Fout
conceded that he had done so.

Allen Sharp attended several meetings where discussions were held about
bombing the mine. Sharp drove the conspirators to the mine on the night of a
failed attempt to bomb the mine, as well as on September 21, 1989, when the
group bombed the ventilation fan. Sharp and his son waited in the truck for the
conspirators to set the explosives, and then drove the conspirators back to their
place of meeting. The bomb in the fan exploded at 4:30 a.m.; another bomb
failed to detonate.

Fout and Sharp were charged in a multiple count indictment. Both were charged
in Count One with conspiracy in violation of 18 U.S.C. Sec. 371. The
underlying offenses were violations of: 18 U.S.C. Sec. 844(i) (property damage
by use of explosives); 18 U.S.C. Sec. 1366 (destruction of an energy facility);
and 26 U.S.C. Secs. 5861(d) and (f) (receiving and possessing an illegal firearm
and making an illegal firearm). Both were charged in Count Two with violating
18 U.S.C. Secs. 844(i) and (h)(2).

10

Both Fout and Sharp entered pleas of guilty. Each was ordered to pay restitution
in the amount of $112,058.40 and $100 in fines.2 The amount of restitution
included: the replacement cost of a ventilation fan, the cost of supplies to repair
the mine, payroll for workers who did the repairs including taxes on the
payroll, and loss of income. Fout and Sharp appealed the inclusion of the loss
of income as not allowed under 18 U.S.C. Sec. 3663(b).

11

At Fout's sentencing hearing, the government made no written motion for

substantial assistance. Although a writing is not required for such a motion, in
the district in question, the practice of the government when making such a
motion was to make a written motion. Thus, the district court did not rule on a

motion for substantial assistance because it did not believe it was presented
with one.
12

Fout filed a motion to reconsider and correct sentence. A hearing was held on
May 7, 1990. There, the district court denied Fout's motion. The court stated its
reasons as follows:

13 Government did not make a written motion for substantial assistance at the
The
disposition of this matter and the court did not depart from the applicable guideline
range. The Defendant asks this Court in the instant motion to resentence the
Defendant on the basis of his substantial assistance to the Government.
14

The Government must make a motion for substantial assistance in order for the
Court to depart for that reason. Sec. 5K1.1 of the Sentencing Guidelines. The
evidence is clear that the Government has not and will not make such a
motion.... The plain meaning of Sec. 5K1.1 is that this court does not have
jurisdiction to downwardly depart from the guidelines absent a motion for
substantial assistance.

15

Fout appealed his sentence.

16

At sentencing, Sharp asked for a reduction in his base offense level under Sec.
3B1.2 of the Sentencing Guidelines based on his minimal or minor role in the
bombings. The district court found that Sharp was not a minimal or minor
participant and did not adjust his base level. Sharp appealed this determination.

II.
17

Three issues are presented on this appeal. First, whether the district court erred
in including loss of income in the order of restitution. Second, whether the
district court erred by not granting a motion for substantial assistance for Fout.
Third, whether the district court erred in finding that Sharp was not a minor or
minimal participant in the bombings. We address each issue in turn.

A.
18

The district court imposed restitution upon all nine defendants involved in the
bombings under the Victim and Witness Protection Act of 1982, 18 U.S.C. Sec.
3663 ("V.W.P.A."). The court imposed restitution in the amount of
$112,058.40. This amount included: the replacement cost of the ventilation fan
($30,000); the cost of supplies for repairs of the mine ($12,303.95); payroll of

miners who performed repairs on the mine ($36,080); taxes on the payroll
($4,874.41); and loss of income ($28,200).
19

Section 3663(b) of the V.W.P.A. provides for the types of restitution that may
be given for offenses which result in "damage to or loss or destruction of
property of a victim of the offense." 18 U.S.C. Sec. 3663(b). The court can
require the defendant to return the property. Id. If return of the property is
impossible, the court may require the defendant to pay an amount equal to the
greater of: (1) the value of the property on the date of the damage; or (2) the
value of the property on the date of sentencing. Id. Section 3663(b) does not
provide for the recovery of lost profits.

20

Section 3663(a) does provide for lost income; however, this section only
applies in the "case of an offense resulting in bodily injury to a victim." 18
U.S.C. Sec. 3663(a). There were no bodily injuries in this case; therefore, it
appears that the granting of restitution for lost income was improper under the
statute.

21

In United States v. Mitchell, 876 F.2d 1178 (5th Cir.1989), the Fifth Circuit
held that restitution for lost income could not be awarded under 3663(a). There
the defendant was in the possession of stolen trucks. The court ordered
restitution, including lost income. The Fifth Circuit remanded the case based on
the following rationale:

22
Congress
is clearly capable of authorizing restitution for lost income when it
chooses to do so. See 18 U.S.C. Sec. 3663(b)(2). Despite this fact, it has not
included lost income in the type of restitution that may be ordered in property cases
and, unless and until it amends the statute to include lost income, courts may not
order such restitution in property cases.
23

Id. at 1183. Because the court could not determine from the record exactly what
amount of the restitution was improper, the court remanded to the district court
to recalculate. Id. at 1184.

24

The Mitchell case is instructive. Based on the plain language of the statute, the
district court should not have included lost income in the calculation of
restitution. Therefore, we remand the case to the district court for a
recalculation of restitution in light of the foregoing.

25

Fout and Sharp also argue that the inclusion of the cost of repairs was
improper. We disagree. The language of the statute provides that the defendant

must pay an amount equal to the value of the property on the date of the
damage. Defendants assert that the value of the property was $30,000, which
represents the replacement cost of the fan. This value, however, fails to take
into account the fact that the fan that was damaged had been installed as part of
the mine property. Moreover, other parts of the mine property, including the
mine itself, were damaged. The district court properly took into account the
entire amount of damage to all the property injured as a result of the bombing.
Therefore, the inclusion of repair costs was not error.
26

On remand, the district court should pay particular attention to our holding in
United States v. Bruchey, 810 F.2d 456 (4th Cir.1989). There, we stated that
"we join those courts which have invoked their supervisory power to require
district courts to make specific fact findings on those matters relevant to
application of the V.W.P.A." United States v. Bruchey, 810 F.2d 456, 458 (4th
Cir.1987). Appellate review of restitution is difficult unless the trial court
makes explicit findings of fact. Id. We explained the necessity of such findings
in Bruchey:

27 V.W.P.A. implicitly requires the district judge to balance the victim's interest in
The
compensation against the financial resources and circumstances of the defendant--all
while remaining faithful to the usual rehabilitative, deterrent, retributive and
restrictive goals of criminal sentencing.... The trial court should also make clear
findings of fact on the defendant's resources, and the financial needs and earning
ability of the defendant and the defendant's dependents. Such findings of fact should
be keyed to the specific type and amount of restitution ordered.
28

Id. at 458-59. Because the district court had not made such specific findings of
fact in Bruchey, we remanded to the district court to make those findings.

29

In this case, the district court imposed the exact amount of restitution on each
of the nine defendants, with little discussion. The court made no specific
findings regarding either Fout's or Sharp's abilities to pay. That there may be
reason to be concerned about their ability to pay is evident from the court's
stated reason for not imposing other fines upon them: "The Court has imposed
no fine which is outside the guideline range because the defendant does not
have the financial ability to pay a fine in light of the Court's order of
restitution." On remand, the district court should make the findings of fact
required by Bruchey on an individualized basis, balancing the victim's interest
in compensation against the defendant's ability to pay.

B.

30

The second issue before us concerns a motion for substantial assistance. Fout
alleges that the district court erred by not granting him a reduction under Sec.
5K1.1 of the Sentencing Guidelines for his substantial assistance. See United
States Sentencing Commission, Guidelines Manual, Sec. 5K1.1 (Nov.1989)
(hereinafter U.S.S.G.). Section 5K1.1 provides:

31 motion of the government stating that the defendant has provided substantial
Upon
assistance in the investigation or prosecution of another person who has committed
an offense, the court may depart from the guidelines.
32

This court has held that the district court may not consider a departure under
Sec. 5K1.1 unless the government has made a motion:

33 language of this section is clear and unequivocal that consideration of such a

The
departure must begin with a motion of the government. There may be no
consideration by the court of the defendant's assistance until the necessary motion
has been made by the government. When the motion is made by the government, the
district judge must determine whether a downward departure is warranted, and the
section sets forth various circumstances that may be considered by the court in
ruling upon such a motion.... [The defendant] cannot escape the clear import of the
requirement that the government must initiate any departure from the Guidelines by
filing a motion with the court.
34

United States v. Francois, 889 F.2d 1341, 1343-44 (4th Cir.1989), cert. denied,
--- U.S. ----, 110 S.Ct. 1822, 108 L.Ed.2d 951 (1990). In the present case, the
government did not make a motion for substantial assistance. Therefore, under
the plain language of the guidelines and our holding in Francois, the district
court correctly refused to grant defendant's request for a downward departure.3
While we hold that no downward departure was warranted in this case, the facts
give us cause for concern.

35

The government's agents and attorneys dealt with an unrepresented and, at the
time, uncharged man. They made representations to him. It is unclear exactly
what those representations were. It has been established that they did not
specifically say that they would make a "motion to depart" at the time of the
plea arrangement. However, a layperson's understanding of "doing all we can
with the guidelines" could easily encompass such a promise. In reliance upon
those representations, Fout cooperated with the government, wearing a body
wire, testifying in proceedings against his co-conspirators, and risking the ire of
the union members he had betrayed.

36

We do not suggest that this is a case like Santobello v. New York, 404 U.S.

36

We do not suggest that this is a case like Santobello v. New York, 404 U.S.
257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), in which the government made a
specific promise and then reneged. This is, however, one of several cases from
this district in which similar problems have arisen, and we voice our concern
about what appears to be a practice of making unclear oral statements to
unrepresented criminal defendants which they may misinterpret as promises
upon which they can rely.

C.
37

The third issue before us is whether the district court erred because it did not
decrease Sharp's sentence pursuant to Sec. 3B1.2 of the U.S.S.G. We review
the court's decision under the clearly erroneous standard. United States v.
Daughtrey, 874 F.2d 213, 218 (4th Cir.1989); United States v. White, 875 F.2d
427, 434 (4th Cir.1989). Sharp claims that he is less culpable than the other
conspirators because he merely drove them to the site and did not actually place
any explosives or take a leadership role in any of the meetings. Sharp claims
that he should receive a reduction because Thomas, another conspirator,
received a reduction under Sec. 3B1.2. Thomas went with Sharp on the failed
mission and waited with Sharp for the rest of the conspirators to return.
However, when the conspirators went back and actually set the bomb which
exploded in the fan, Sharp drove them back; Thomas did not go on that trip.
This factual difference is significant. Thomas took no part in the actual
bombing on the night it occurred. Sharp did.

38

The district court found that Sharp was a key part of the conspiracy:

39 was the man that waited at the bottom of the hill to take them back after they had
He
done what they were, what they went up there and intended to do. He transported the
dynamite. I cannot describe that as minimal participation. He did it with full
knowledge, premeditation, and an understanding in his instance particularly of what,
just what explosives can do. So, I cannot agree with you in requesting that four-point
reduction.
40

We cannot say that such a ruling was clearly erroneous. In cases where
defendants have claimed a minor or minimal role because they were only
drivers, the courts have upheld trial court's refusals to grant reductions based on
the status as driver. See United States v. Moreno, 899 F.2d 465, 471 (6th
Cir.1990) (holding that as a driver, the defendant knew as much as the other
players and was not entitled to a minor or minimal role reduction); United
States v. Velasquez, 890 F.2d 717, 720 (5th Cir.1989) (holding that a driver on
a drug pick-up was not substantially less culpable, justifying a minimal or
minor participant adjustment).

41

When a defendant seeks a mitigating adjustment under Sec. 3B1.2, he has the
burden of convincing the district court of its application by a preponderance of
the evidence. United States v. Gordon, 895 F.2d 932, 935 (4th Cir.1990), cert.
denied, --- U.S. ----, 111 S.Ct. 131, 112 L.Ed.2d 98 (1990). Sharp has not
carried his burden. Here, looking at the evidence in the most favorable light
possible regarding Sharp's behavior, the most he can show "is that the record
admitted of more than one conclusion on the matter; and under the applicable
standard of review, we therefore must reject his challenge to the district court's
refusal to find him a minimal or minor participant." United States v. McCrary,
887 F.2d 485, 488 (4th Cir.1989).

III.
42

In conclusion, we hold that the district court incorrectly included loss of income
in the calculation of restitution. Therefore, we remand the case to the district
court for recalculation of the restitution amount. We hold that the district court
correctly declined to depart downward for substantial assistance when
sentencing Fout, and we affirm his sentence. Finally, we hold that the district
court's finding that Sharp was not a minor or minimal participant was not
clearly erroneous. Therefore, we affirm the sentence imposed upon Sharp.

43

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

The plea agreement provided that Fout would plead guilty to certain charges in
exchange for other charges against him being dropped. The agreement further
provided that Fout would be completely forthright and truthful and that he
would give "signed, sworn statements, grand jury testimony and trial testimony
relative thereto" and that he would be granted immunity with respect to any
charges relating to those statements. The agreement further provided that the
agreement represented the "entire agreement between [Fout] and the United
States in this matter." Finally, the government agreed that it would "advise the
Court of the nature and extent of [Fout's] forthrightness and truthfulness, or
failure to be forthright and truthful, and ask the Court to give same weight as
the Court deems appropriate." Both parties expressly acknowledged that the
matter of sentencing was within the sole discretion of the court

The district court ordered restitution for all nine co-defendants involved in the
bombings of the mine in the aggregate amount of $112,058.40. The restitution
was to be divided equally among the nine co-defendants

In a recent unpublished opinion, this court vacated a sentence and remanded the

case to the district court because the district court had made a downward
departure under Sec. 5K1.1 without a motion by the government. United States
v. Kelly, 905 F.2d 1532 (4th Cir.1990)